Sanjay Shrivastava vs State Of Chhattisgarh on 24 March, 2026

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    Chattisgarh High Court

    Sanjay Shrivastava vs State Of Chhattisgarh on 24 March, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

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                                                                                     2026:CGHC:13999-DB
    
                                                                                                          NAFR
    
                                        HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                                                      CRMP No. 2782 of 2025
    
                          Sanjay Shrivastava S/o Ramesh Kumar Shrivastava Aged About 48 Years R/o
                          27 Kholi, Vikas Nagar, Police Station Civil Lines Bilaspur, District Bilaspur, C.G.
    
                                                                                                    ... Petitioner
                                                                versus
    
                          1 - State Of Chhattisgarh Through The Police Station Civil Lines, Bilaspur,
                          C.G.
    
    
                          2 - Rekha Shrivastava W/o Sanjay Shrivastav Aged About 48 Years R/o Pallaw
                          Bhavan Ayodhya Nagar, Present R/o Hemu Nagar, Near Murra Bhatta, P.S.
                          Torva, District Bilaspur, C.G.
                                                                                                ---- Respondents

    (Cause title taken from Case Information System)

    For Petitioner : Mr. Virendra Verma, Advocate
    For Respondent No.1/State : Mr. Nitansh Jaiswal, Deputy Govt.

    SPONSORED

    Advocate
    For Respondent No.2 : Mr. Vijay K. Deshmukh, Advocate along
    with Ms. Tejaswi Mandavi, Advocate

    Hon’ble Shri Ramesh Sinha, Chief Justice
    Hon’ble Shri Ravindra Kumar Agrawal, Judge

    Order on Board

    Per Ramesh Sinha, Chief Justice
    24/03/2026
    VED
    PRAKASH
    DEWANGAN

    1. Heard Mr. Virendra Verma, learned counsel appearing for the petitioner,
    Digitally signed by
    VED PRAKASH
    DEWANGAN
    Date: 2026.04.01
    as well as Mr. Nitansh Jaiswal, learned Deputy Government Advocate
    10:53:30 +0530
    2

    appearing for the respondent No.1/State, and Mr. Vijay K. Deshmukh

    along with Ms. Tejaswi Mandavi, learned counsel appearing for the

    respondent No.2.

    2. This petition has been preferred under Section 528 of the Bharatiya

    Nagarik Suraksha Sanhita, 2023, wherein the petitioner seeks

    quashment of the impugned order dated 25.11.2021 passed by the

    learned Additional Sessions Judge (Fast Track Court), Bilaspur (C.G.) in

    Sessions Trial No. 159/2021, arising out of Crime No. 138/2021

    registered at Police Station Civil Lines, Bilaspur, District Bilaspur (C.G.),

    whereby charges have been framed against the petitioner under

    Sections 376(2)(n), 420, 496, 506, 294 and 323 of the Indian Penal

    Code. The petitioner has also prayed for quashment of the First

    Information Report as well as the entire charge-sheet dated 16.03.2021

    filed before the learned trial Court.

    3. The present petition has been filed by the petitioner seeking for the

    following reliefs:-

    “i. That, the Hon’ble Court may kindly pleased to

    allow the instant petition under section 528 of

    B.N.S.S. 2023 filed by the petitioner.

    ii. The Hon’ble Court may kindly be pleased to

    quash the F.I.R. bearing no. 138/2021 u/s 376,

    420 of I.P.C.

    iii. That, the Hon’ble Court may kindly pleased to

    quash entire charge sheet filed on dated
    3

    16.03.2021 before Learned Special Judge (FTC)

    Bilaspur (in Session Trial case no. 159/2021).

    iv. That, Hon’ble Court may kindly be pleased to

    quash the impugned order dated 25.11.2021,

    wherein the learned trial court has framed the

    charges under section 376(2)(n), 420, 496, 506,

    294, 323 of I.P.C. against the petitioner.”

    4. The facts of the case as emerges from the pleadings of the petition are

    that, on 25.01.2021, the respondent No.2/prosecutrix lodged a complaint

    before Police Station Civil Lines, Bilaspur alleging that the present

    petitioner had entered into a relationship with her and had fraudulently

    performed a love marriage with her in the year 2014. It was further

    alleged that on the pretext of such relationship, the petitioner established

    physical relations with her and continued to exploit her over a period of

    time. The prosecutrix also alleged that she had borne the entire

    expenses of the medical education of the petitioner’s daughter and had,

    on several occasions, given money to the petitioner.

    ******* On the basis of the aforesaid complaint, an FIR bearing Crime

    No. 138/2021 was registered against the petitioner for the offences

    punishable under Sections 376 and 420 of the Indian Penal Code at

    Police Station Civil Lines, Bilaspur. During the course of investigation,

    the statements of as many as 11 witnesses were recorded under

    Section 161 Cr.P.C., and the statement of the prosecutrix was also

    recorded under Section 164 Cr.P.C. before the competent Magistrate.
    4

    ******* After completion of investigation, the police filed a charge-sheet

    against the petitioner on 16.03.2021. During investigation, additional

    offences under Sections 496, 506, 294 and 323 of the IPC were also

    incorporated. The matter was thereafter committed to the Court of

    Sessions and registered as Sessions Trial No. 159/2021 before the

    Court of learned Additional Sessions Judge (Fast Track Court), Bilaspur.

    ******* At the stage of framing of charge, the petitioner raised objections

    and sought to rely upon certain documents to demonstrate that he had

    been falsely implicated in the case. It was contended that the prosecutrix

    was his legally wedded wife and that the relationship between them was

    consensual, and therefore, no offence under Section 376 IPC was made

    out. It was further contended that the prosecutrix had voluntarily

    provided financial assistance towards the education of the petitioner’s

    daughter and there was no element of cheating or inducement so as to

    attract the offence under Section 420 IPC.

    ******* However, the learned trial Court, without adequately considering

    the defence raised by the petitioner and the material placed on record,

    proceeded to pass the impugned order dated 25.11.2021, whereby

    charges under Sections 376(2)(n), 420, 496, 506, 294 and 323 of the

    IPC were framed against the petitioner.

    ******* Being aggrieved by the registration of the FIR, filing of the

    charge-sheet, and the order framing charges, the petitioner has

    preferred the present petition under Section 528 of the Bharatiya

    Nagarik Suraksha Sanhita, 2023 seeking quashment of the aforesaid

    proceedings.

    5

    5. Learned counsel for the petitioner would submit that the impugned order

    dated 25.11.2021 passed by the learned Additional Sessions Judge

    (FTC), Bilaspur is wholly illegal, arbitrary and contrary to the settled

    principles governing framing of charge, inasmuch as the learned trial

    Court has failed to properly appreciate the material available on record

    and has mechanically framed charges against the petitioner without

    there being sufficient ground for proceeding. It is submitted that the

    entire prosecution case, even if taken at its face value and accepted in

    its entirety, does not disclose the commission of any offence under

    Section 376(2)(n) of the Indian Penal Code. Learned counsel would

    contend that the respondent No.2/prosecutrix herself has admitted in

    earlier proceedings that she had solemnized a love marriage with the

    petitioner and was fully aware of his marital status. Therefore, the

    essential ingredient of “misconception of fact” as required for constituting

    the offence of rape on the pretext of marriage is completely absent in the

    present case. The relationship between the parties, at best, was

    consensual in nature and continued for a considerable period of time,

    and thus, the same cannot be given a criminal colour so as to attract the

    provisions of Section 376 IPC.

    ******* It is further submitted that the prosecutrix has, in fact, initiated

    proceedings under Section 125 of the Code of Criminal Procedure

    seeking maintenance from the petitioner, thereby acknowledging the

    status of the petitioner as her husband. This conduct of the prosecutrix

    clearly demolishes the allegation that the petitioner had deceitfully

    established physical relations with her on a false promise of marriage.
    6

    The said fact has not been properly considered by the learned trial Court

    while passing the impugned order.

    ******* Learned counsel would further submit that the ingredients of the

    offence under Section 420 IPC are also not made out, as there is no

    material to show that the petitioner had any dishonest intention from the

    very inception of the alleged transaction. It is contended that the

    prosecutrix voluntarily extended financial assistance towards the

    education of the petitioner’s daughter out of her own free will and

    affection, and at no point of time was there any inducement or fraudulent

    misrepresentation on the part of the petitioner. In absence of mens rea

    at the inception, the offence of cheating cannot be sustained. It is also

    argued that the learned trial Court has failed to consider the

    documentary evidence placed by the petitioner, which clearly indicates

    that the prosecutrix has been using different identities at different points

    of time. Reference is made to the documents filed along with the

    petition, including the proceedings under Section 138 of the Negotiable

    Instruments Act, wherein the prosecutrix has described herself as Rekha

    Verma, wife of Jitendra Verma, and the documents obtained through RTI

    showing different names of her child and herself. These documents

    create serious doubt about the credibility and veracity of the prosecutrix

    and indicate that the petitioner has been falsely implicated.

    ******* Learned counsel would further submit that the prosecutrix was

    also involved in a criminal case under the provisions of the Immoral

    Traffic (Prevention) Act, which further casts a serious doubt on her

    conduct and credibility. The said aspect has also been ignored by the

    learned trial Court while framing charges against the petitioner. It is next
    7

    contended that even in the earlier complaint made by the prosecutrix in

    the year 2020, she had clearly stated that she was aware of the fact that

    the petitioner was already married at the time when she entered into a

    relationship with him. On the basis of such complaint, the police had

    registered a non-cognizable offence, which clearly demonstrates that the

    present FIR is an afterthought and has been lodged with an ulterior

    motive to harass and pressurize the petitioner.

    ******* Learned counsel would also submit that the conduct of the

    prosecutrix in not appearing before the trial Court in Sessions Trial No.

    159/2021 and simultaneously pursuing the maintenance proceedings

    shows that the present criminal case has been initiated only to exert

    pressure upon the petitioner and is nothing but an abuse of the process

    of law. It is further argued that the learned trial Court, while framing

    charges, has not applied its judicial mind and has failed to consider

    whether there exists a prima facie case against the petitioner. The order

    impugned is cryptic and non-speaking, and does not reflect any

    reasoning as to how the ingredients of the alleged offences are made

    out. It is settled law that though at the stage of framing of charge,

    detailed appreciation of evidence is not required, however, the Court is

    duty bound to see whether the basic ingredients of the offence are prima

    facie disclosed, which has not been done in the present case.

    ******* In view of the aforesaid submissions, learned counsel for the

    petitioner would pray that this Hon’ble Court may be pleased to exercise

    its inherent jurisdiction under Section 528 of the B.N.S.S., 2023, to

    prevent abuse of the process of law and to secure the ends of justice,

    and accordingly quash the FIR bearing Crime No. 138/2021, the charge-
    8

    sheet dated 16.03.2021, as well as the impugned order dated

    25.11.2021 framing charges against the petitioner.

    6. Learned State counsel would submit that the present petition seeking

    quashment of FIR, charge-sheet and the order framing charges is wholly

    misconceived and not maintainable in law. It is contended that the FIR

    bearing Crime No. 138/2021 was registered on the basis of a written

    complaint disclosing commission of cognizable offences under the

    Indian Penal Code, and the police authorities have acted strictly in

    accordance with law in registering the same and proceeding with the

    investigation. It is further submitted that at the stage of registration of

    FIR and investigation, the truthfulness or otherwise of the allegations

    cannot be examined in detail, and the FIR is only intended to set the

    criminal law into motion.

    ******* Learned counsel would further submit that the allegations made

    by the prosecutrix clearly disclose a prima facie case against the

    petitioner, including allegations of continuous exploitation on the pretext

    of marriage and financial inducement. During the course of investigation,

    statements of witnesses under Section 161 Cr.P.C. as well as the

    statement of the prosecutrix under Section 164 Cr.P.C. have been

    recorded, and upon due consideration of the material collected, the

    police have filed the charge-sheet. It is thus submitted that there exists

    sufficient material to proceed against the petitioner and the learned trial

    Court has rightly framed charges after considering the record of the

    case. At this stage, meticulous appreciation of evidence or adjudication

    on disputed facts is impermissible.

    9

    ******* It is further argued that the law with regard to quashment of FIR is

    well settled by the Hon’ble Supreme Court in the case of State of

    Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335 wherein it has been

    held that the inherent powers of the High Court are to be exercised

    sparingly and only in exceptional cases. The present case does not fall

    within any of the categories warranting interference. The defence sought

    to be raised by the petitioner involves disputed questions of fact, which

    can only be adjudicated during trial on the basis of evidence. Therefore,

    in absence of any patent illegality or abuse of process of law, this

    Hon’ble Court may not exercise its inherent jurisdiction at this stage and

    the petition, being premature and devoid of merit, deserves to be

    dismissed.

    7. Learned counsel appearing for respondent No.2 would submit that the

    present petition filed by the petitioner is wholly misconceived, devoid of

    merit and liable to be dismissed at the threshold, as the same has been

    filed with mala fide intention and by suppressing material facts from this

    Hon’ble Court. It is contended that the respondent No.2 is legally

    wedded wife of the petitioner, and after the death of her first husband,

    she solemnized marriage with the petitioner in the year 2014 and both of

    them lived together as husband and wife for a considerable period. The

    petitioner himself has admitted the said relationship in earlier

    proceedings, including his bail application, wherein he has specifically

    acknowledged cohabitation and marital relations with respondent No.2.

    Therefore, the contention of the petitioner disputing the relationship is

    false and contrary to record.

    10

    ******* Learned counsel would further submit that the allegations made

    by the petitioner regarding different names and identities of respondent

    No.2 are completely baseless and misleading. It is clarified that the

    respondent No.2 is known as Rekha Verma, daughter of Late Bacchulal

    Verma, and the documents relied upon by the petitioner have either

    been misinterpreted or do not pertain to the respondent No.2 at all. The

    documents forming part of the charge-sheet, including statements

    recorded under Section 161 Cr.P.C. as well as bank records, clearly

    establish the identity of respondent No.2. It is further submitted that the

    petitioner has deliberately placed irrelevant and unrelated documents on

    record to create confusion and to malign the reputation of respondent

    No.2.

    ******* It is also argued that there is sufficient prima facie material

    available on record to proceed against the petitioner for the offences

    alleged, and the learned trial Court has rightly framed charges after due

    consideration of the evidence collected during investigation. The

    respondent No.2 has been diligently pursuing her legal remedies,

    including proceedings for maintenance, and the present petition has

    been filed only to delay the trial and to evade the petitioner’s legal

    obligations. It is thus submitted that the petition deserves to be

    dismissed with exemplary costs, as it amounts to abuse of the process

    of law and an attempt to obstruct the course of justice.

    8. We have heard learned counsel for the parties and perused the entire

    record of the case including the FIR, charge-sheet, statements recorded

    during investigation and the impugned order framing charges.
    11

    9. At the outset, it is well settled that the power of this Court under Section

    528 of the B.N.S.S. (pari materia to Section 482 Cr.P.C.) is to be

    exercised to prevent abuse of the process of law and to secure the ends

    of justice. The Hon’ble Supreme Court in Haji Iqbal @ Bala v. State of

    U.P., 2023 SCC OnLine SC 946, has held that while exercising such

    jurisdiction, the Court is not required to confine itself only to the

    averments in the FIR, but may also examine the attending

    circumstances and material collected during investigation to ascertain

    whether the proceedings are frivolous or vexatious. In Para 14 of its

    judgment, the Hon’ble Supreme Court has held that :

    “14. At this stage, we would like to observe

    something important. Whenever an accused

    comes before the Court invoking either the

    inherent powers under Section 482 of the Code of

    Criminal Procedure (CrPC) or extraordinary

    jurisdiction under Article 226 of the Constitution to

    get the FIR or the criminal proceedings quashed

    essentially on the ground that such proceedings

    are manifestly frivolous or vexatious or instituted

    with the ulterior motive for wreaking vengeance,

    then in such circumstances the Court owes a duty

    to look into the FIR with care and a little more

    closely. We say so because once the complainant

    decides to proceed against the accused with an

    ulterior motive for wreaking personal vengeance,

    etc., then he would ensure that the FIR/complaint
    12

    is very well drafted with all the necessary

    pleadings. The complainant would ensure that the

    averments made in the FIR/complaint are such

    that they disclose the necessary ingredients to

    constitute the alleged offence. Therefore, it will

    not be just enough for the Court to look into the

    averments made in the FIR/complaint alone for

    the purpose of ascertaining whether the

    necessary ingredients to constitute the alleged

    offence are disclosed or not. In frivolous or

    vexatious proceedings, the Court owes a duty to

    look into many other attending circumstances

    emerging from the record of the case over and

    above the averments and, if need be, with due

    care and circumspection try to read in between

    the lines. The Court while exercising its

    jurisdiction under Section 482 of the CrPC or

    Article 226 of the Constitution need not restrict

    itself only to the stage of a case but is

    empowered to take into account the overall

    circumstances leading to the initiation/registration

    of the case as well as the materials collected in

    the course of investigation. Take for instance the

    case on hand. Multiple FIRs have been registered

    over a period of time. It is in the background of

    such circumstances the registration of multiple

    FIRs assumes importance, thereby attracting the
    13

    issue of wreaking vengeance out of private or

    personal grudge as alleged.”

    10. Applying the aforesaid principles to the facts of the present case, it is

    evident that the relationship between the petitioner and respondent No.2

    was not a case of forcible exploitation, but rather a long-standing

    association between two adults. The material available on record,

    including the earlier complaint and surrounding circumstances, indicates

    that the respondent No.2 was aware of the marital status of the

    petitioner and had voluntarily entered into a relationship with him. The

    conduct of the parties further reveals that they lived together for a

    considerable period, thereby indicating conscious and voluntary

    participation on the part of respondent No.2.

    11. At this juncture, it is also appropriate to take note of subsequent judicial

    proceedings between the parties, which have a direct bearing on the

    nature of their relationship. This Court finds that in Criminal Revision No.

    177 of 2024 (Rekha Verma v. Sanjay Shrivastava), decided on

    12.11.2024, a Single Bench of this Court, upon due consideration of the

    material available on record, has recorded a categorical finding that the

    respondent No.2 and the present petitioner had lived together in a live-in

    relationship for a considerable period and that, for the purposes of

    proceedings under Section 125 Cr.P.C., the respondent No.2 is to be

    treated as the wife of the petitioner. Consequently, an amount of

    Rs.15,000/- per month has been awarded as interim maintenance in

    favour of respondent No.2.

    14

    12. It is further borne out from the record, including the proceedings before

    the learned Family Court in MJC Case No. 245/2025 (arising out of MJC

    No. 457/2021), that pursuant to the aforesaid order, the respondent No.2

    is receiving maintenance from the petitioner, and the petitioner has been

    complying with the said order by making payment of maintenance

    amount. The order-sheet dated 26.04.2025 reflects payment of

    Rs.15,000/- towards maintenance, thereby reinforcing the subsistence

    and acknowledgment of such relationship between the parties.

    13. The aforesaid judicial determination and the conduct of the parties

    assume considerable significance, as they prima facie establish that the

    relationship between the petitioner and respondent No.2 was not

    clandestine or induced by deception, but rather a long-standing

    cohabitation akin to marriage. It is well settled that where a man and

    woman live together for a considerable period as husband and wife, a

    presumption of marriage arises in favour of such relationship, unless

    rebutted by cogent evidence. In the present case, such presumption not

    only arises but also stands fortified by a judicial finding granting

    maintenance to respondent No.2 by treating her as the wife of the

    petitioner.

    14. In such circumstances, the allegation that the physical relationship

    between the parties was established on account of any “misconception

    of fact” or fraudulent inducement becomes inherently doubtful. On the

    contrary, the material on record indicates a consensual and

    acknowledged domestic relationship, which has also been recognized in

    collateral judicial proceedings.

    15

    15. The Hon’ble Supreme Court in Uday v. State of Karnataka, (2003) 4

    SCC 46, has categorically held that where a woman is a mature adult

    and has consciously consented to a physical relationship despite being

    aware of the consequences, such consent cannot be said to be vitiated

    by misconception of fact. In paragraphs 23 and 25 of this judgment it

    has been held that:

    “23. Keeping in view the approach that the Court

    must adopt in such cases, we shall now proceed to

    consider the evidence on record. In the instant case,

    the prosecutrix was a grown up girl studying in a

    college. She was deeply in love with the appellant.

    She was however aware of the fact that since they

    belonged to different castes, marriage was not

    possible. In any event the proposal for their marriage

    was bound to be seriously opposed by their family

    members. She admits having told so to the appellant

    when he proposed to her the first time. She had

    sufficient intelligence to understand the significance

    and moral quality of the act she was consenting to.

    That is why she kept it a secret as long as she could.

    Despite this, she did not resist the overtures of the

    appellant, and in fact succumbed to it. She thus

    freely exercised a choice between resistance and

    assent. She must have known the consequences of

    the act, particularly when she was conscious of the

    fact that their marriage may not take place at all on
    16

    account of caste considerations. All these

    circumstances lead us to the conclusion that she

    freely, voluntarily, and consciously consented to

    having sexual intercourse with the appellant, and her

    consent was not in consequence of any

    misconception of fact.

    25. There is yet another difficulty which faces the

    prosecution in this case. In a case of this nature two

    conditions must be fulfilled for the application of

    Section 90 IPC. Firstly, it must be shown that the

    consent was given under a misconception of fact.

    Secondly, it must be proved that the person who

    obtained the consent knew, or had reason to believe

    that the consent was given in consequence of such

    misconception. We have serious doubts that the

    promise to marry induced the prosecutrix to consent

    to having sexual intercourse with the appellant. She

    knew, as we have observed earlier, that her marriage

    with the appellant was difficult on account of caste

    considerations. The proposal was bound to meet

    with stiff opposition from members of both families.

    There was therefore a distinct possibility, of which

    she was clearly conscious, that the marriage may not

    take place at all despite the promise of the appellant.

    The question still remains whether even if it were so,

    the appellant knew, or had reason to believe, that the
    17

    prosecutrix had consented to having sexual

    intercourse with him only as a consequence of her

    belief, based on his promise, that they will get

    married in due course. There is hardly any evidence

    to prove this fact. On the contrary the circumstances

    of the case tend to support the conclusion that the

    appellant had reason to believe that the consent

    given by the prosecutrix was the result of their deep

    love for each other. It is not disputed that they were

    deeply in love. They met often, and it does appear

    that the prosecutrix permitted him liberties which, if

    at all, is permitted only to a person with whom one is

    in deep love. It is also not without significance that

    the prosecutrix stealthily went out with the appellant

    to a lonely place at 12 O’clock in the night. It usually

    happens in such cases, when two young persons are

    madly in love, that they promise to each other

    several times that come what may, they will get

    married. As stated by the prosecutrix the appellant

    also made such a promise on more than one

    occasion. In such circumstances the promise loses

    all significance, particularly when they are over come

    with emotions and passion and find themselves in

    situations and circumstances where they, in a weak

    moment, succumb to the temptation of having sexual

    relationship. This is what appears to have happened

    in this case as well, and the prosecutrix willingly
    18

    consented to having sexual intercourse with the

    appellant with whom she was deeply in love, not

    because he promised to marry her, but because she

    also desired it. In these circumstances it would be

    very difficult to impute to the appellant knowledge

    that the prosecutrix had consented in consequence

    of a misconception of fact arising from his promise.

    In any event, it was not possible for the appellant to

    know what was in the mind of the prosecutrix when

    she consented, because there were more reasons

    than one for her to consent.”

    16. Similarly, in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra,

    (2019) 18 SCC 191, the Hon’ble Supreme Court has drawn a clear

    distinction between a false promise of marriage and a mere breach of

    promise, holding that consensual physical relationship between adults

    would not constitute rape unless it is established that the promise to

    marry was false from the very inception and was made with a mala fide

    intention to deceive. In paragraphs 15, 23 and 24 of this judgment, it has

    been held that:

    “15. Section 375 defines the offence of rape and

    enumerates six descriptions of the offence. The first

    clause operates where the women is in possession of

    her senses and, therefore, capable of consenting but

    the act is done against her will and the second where

    it is done without her consent; the third, fourth and

    fifth when there is consent but it is not such a consent
    19

    as excuses the offender, because it is obtained by

    putting her, or any person in whom she is interested,

    in fear of death or of hurt. The expression “against

    her ‘will'” means that the act must have been done in

    spite of the opposition of the woman. An inference as

    to consent can be drawn if only based on evidence or

    probabilities of the case. “Consent” is also stated to

    be an act of reason coupled with deliberation. It

    denotes an active will in mind of a person to permit

    the doing of the act complained of.

    Section 90 of the IPC defines “consent” known

    to be given under fear or misconception:-

    Section 90: Consent known to be given under

    fear or misconception.–A consent is not such a

    consent as it intended by any section of this

    Code, if the consent is given by a person under

    fear of injury, or under a misconception of fact,

    and if the person doing the act knows, or has

    reason to believe, that the consent was given in

    consequence of such fear or misconception”

    Thus, Section 90 though does not define

    “consent”, but describes what is not “consent”.

    Consent may be express or implied, coerced or

    misguided, obtained willingly or through deceit.

    If the consent is given by the complainant

    under misconception of fact, it is vitiated.

    20

    Consent for the purpose of Section 375

    requires voluntary participation not only after

    the exercise of intelligence based on the

    knowledge of the significance and moral quality

    of the act, but also after having fully exercised

    the choice between resistance and assent.

    Whether there was any consent or not is to be

    ascertained only on a careful study of all

    relevant circumstances.

    23. Thus, there is a clear distinction between rape

    and consensual sex. The court, in such cases, must

    very carefully examine whether the complainant had

    actually wanted to marry the victim or had mala fide

    motives and had made a false promise to this effect

    only to satisfy his lust, as the later falls within the

    ambit of cheating or deception. There is also a

    distinction between mere breach of a promise and not

    fulfilling a false promise. If the accused has not made

    the promise with the sole intention to seduce the

    prosecutrix to indulge in sexual acts, such an act

    would not amount to rape. There may be a case

    where the prosecutrix agrees to have sexual

    intercourse on account of her love and passion for the

    accused and not solely on account of the

    misconception created by accused, or where an

    accused, on account of circumstances which he could
    21

    not have foreseen or which were beyond his control,

    was unable to marry her despite having every

    intention to do. Such cases must be treated

    differently. If the complainant had any mala fide

    intention and if he had clandestine motives, it is a

    clear case of rape. The acknowledged consensual

    physical relationship between the parties would not

    constitute an offence under Section 376 of the IPC.

    24. In the instant case, it is an admitted position that

    the appellant was serving as a Medical Officer in the

    Primary Health Centre and the complainant was

    working as an Assistant Nurse in the same health

    centre and that the is a widow. It was alleged by her

    that the appellant informed her that he is a married

    man and that he has differences with his wife.

    Admittedly, they belong to different communities. It is

    also alleged that the accused/appellant needed a

    month’s time to get their marriage registered. The

    complainant further states that she had fallen in love

    with the appellant and that she needed a companion

    as she was a widow. She has specifically stated that

    “as I was also a widow and I was also in need of a

    companion, I agreed to his proposal and since then

    we were having love affair and accordingly we started

    residing together. We used to reside sometimes at my

    home whereas some time at his home.” Thus, they
    22

    were living together, sometimes at her house and

    sometimes at the residence of the appellant. They

    were in a relationship with each other for quite some

    time and enjoyed each other’s company. It is also

    clear that they had been living as such for quite some

    time together. When she came to know that the

    appellant had married some other woman, she lodged

    the complaint. It is not her case that the complainant

    has forcibly raped her. She had taken a conscious

    decision after active application of mind to the things

    that had happened. It is not a case of a passive

    submission in the face of any psychological pressure

    exerted and there was a tacit consent and the tacit

    consent given by her was not the result of a

    misconception created in her mind. We are of the

    view that, even if the allegations made in the

    complaint are taken at their face value and accepted

    in their entirety, they do not make out a case against

    the appellant. We are also of the view that since

    complainant has failed to prima facie show the

    commission of rape, the complaint registered under

    Section 376(2)(b) cannot be sustained.”

    17. Further, in Sonu @ Subhash Kumar v. State of U.P. 2021 SCC OnLine

    SC 181 and Shambhu Kharwar v. State of U.P., 2022 SCC OnLine SC

    1032, the Hon’ble Supreme Court has consistently held that prolonged
    23

    consensual relationships between adults, even if they subsequently fail,

    do not attract the offence under Section 376 IPC.

    18. Recently also, the Hon’ble Supreme Court has reiterated that mere

    failure of a relationship or refusal to marry cannot be given a criminal

    colour, and consensual relationships cannot be converted into criminal

    offences in absence of clear evidence of deception from inception.

    19. In light of the foregoing discussion, particularly considering (i) the long-

    standing cohabitation between the parties, (ii) the judicial finding

    rendered in Criminal Revision No. 177 of 2024 recognizing respondent

    No.2 as wife for the purpose of maintenance, and (iii) the admitted

    payment and receipt of maintenance pursuant thereto, this Court is of

    the considered opinion that the relationship between the parties was

    consensual and bore the attributes of a marital relationship.

    20. Once such a relationship is evident and stands prima facie recognized in

    judicial proceedings, the essential ingredients of the offence under

    Section 376 IPC, namely absence of consent or consent obtained under

    misconception of fact, are not satisfied. The material on record does not

    disclose that the petitioner had any fraudulent or dishonest intention at

    the inception of the relationship. Rather, it reflects a voluntary

    association between two adults over a considerable period of time.

    21. So far as the offences under Sections 420, 496, 506, 294 and 323 IPC

    are concerned, the allegations are either omnibus in nature or do not

    disclose the essential ingredients of the said offences. No specific

    material has been brought on record to prima facie establish dishonest

    intention at the inception so as to constitute the offence of cheating. In
    24

    the backdrop of the admitted relationship and financial dealings between

    the parties, continuation of criminal proceedings on such allegations

    would not be justified.

    22. Continuation of the criminal proceedings in such circumstances,

    particularly when the relationship has been judicially recognized for the

    purpose of maintenance and is being acted upon by the parties, would

    amount to permitting misuse of the criminal justice process for settling

    personal disputes arising out of a failed relationship.

    23. In view of the foregoing discussion and in light of the principles laid

    down by the Hon’ble Supreme Court in Haji Iqbal @ Bala, Uday, Dr.

    Dhruvaram Murlidhar Sonar, Sonu @ Subhash Kumar and

    Shambhu Kharwar (supra), this Court is of the considered opinion that

    the present case is a fit case for exercising inherent jurisdiction.

    24. Accordingly, the petition deserves to be and is hereby allowed. The FIR

    bearing Crime No. 138/2021 registered at Police Station Civil Lines,

    Bilaspur, the charge-sheet dated 16.03.2021 filed in Sessions Trial No.

    159/2021, and the impugned order dated 25.11.2021 passed by the

    learned Additional Sessions Judge (FTC), Bilaspur framing charges

    against the petitioner under Sections 376(2)(n), 420, 496, 506, 294 and

    323 IPC are hereby quashed.

    25. A copy of this order be forwarded to the trial Court for necessary steps

    and information.

                            Sd/-                                           Sd/-
                 (Ravindra Kumar Agrawal)                            (Ramesh Sinha)
                          Judge                                        Chief Justice
    ved
     



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